Background. P.L. 101-649, the Immigration Act of 1990, was enacted into law on November 29, 1990. Section 162(e)(4) of P.L. 101-649 amends Section 3304(a)(14)(A), FUTA, effective October 1, 1991.

Section 3304(a)(14)(A), FUTA, requires, as a condition for the Secretary of Labor's certification of a State to the Secretary of the Treasury, that the State law provide that:

compensation shall not be payable on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services, or was permanently residing in the United States under color of law at the time such services were performed (including an alien who was lawfully present in the United States as a result of the application of the provisions of section 203(a)(7) or section 212(d)(5) of the Immigration and Nationality Act).

Discussion. Prior to the amendment made by Section 162(e)(4) of P.L. 101-649 becoming effective, Section 3304(a)(14)(A), FUTA, provides that the category of aliensv "permanently residing in the United States under color of law" (PRUCOL) includes aliens lawfully present in the United States as a result of the application of Section 203(a)(7) of the Immigration and Nationality Act (INA). Section 203(a)(7), INA, which related to conditional entrants, was repealed by Section 203(c)(3) of the Refugee Act of 1980 (P.L. 96-212) and
replaced under Section 201(b) of the Refugee Act by the addition of Sections 207 and 208 to the INA. Under Section 203(h) of the Refugee Act, Section 203(a)(7), INA, is applicable prior to April 1, 1980. In addition, Section 203(h) of the Refugee Act provides that, effective April 1, 1980, any reference in Federal law to Section 203(a)(7), INA, is considered a reference to Sections 207 and 208, INA. Section 207 relates to refugees and Section 208 to asylees, both of which are, therefore, considered to be in PRUCOL status under Section 3304(a)(14)(A), FUTA. See Unemployment Insurance Program Letters (UIPL) 1-86 and 1-86, Change 1.

Section 162(e)(4) of P.L. 101-649 amended Section 3304(a)(14)(A), FUTA, to delete the reference to obsolete Section 203(a)(7), INA. The amendment does not make any reference to refugees and asylees. Since PRUCOL status is no longer automatic for refugees and asylees, the Department of Labor's interpretation of the two-part test of Section 3304(a)(14)(A) for determining PRUCOL status must be satisfied. Aliens granted refugee and asylee status will continue to be considered in PRUCOL status for the purpose of determination of eligibility for unemployment compensation because aliens in this status satisfy the Department's two-part test.

Under the two-part test, the alien must first be residing under "color of law." As stated in UIPL 1-86, Change 1, for an alien to be residing "under color of law," the Immigration and Naturalization Service (INS) must know of the alien's presence and must provide the alien with written assurance that enforcement of deportation is not planned. Second, to be "permanently residing", the INS must give the alien permission to remain in the U.S. for an indefinite period of time.

Specifically, in the case of refugees and asylees, the INS has affirmatively acted to grant status under the relevant provisions of the INA. The granting of such status in either case gives "color of law" to the alien's presence in the United States for an indefinite period of time. Therefore, both groups of aliens are residing under "color of law" and are also "permanently residing" because they retain such status until revoked by the INS.

Action Required. It is recommended that States delete any references in State law to obsolete Section 203(a)(7), INA. If Congress adds a new provision designated as Section 203(a)(7) to the INA and aliens admitted under such section are subsequently deemed by the Department of Labor not to have PRUCOL status, States will be required to delete references to Section 203(a)(7) from State law to assure consistency of State law with Section 3304(a)(14)(A),
FUTA. Please inform appropriate staff of the change in Section 3304(a)(14)(A), FUTA, made by P.L. 101-649.